论缓和的违法相对论

On eased Relativity of Illegal

关于刑法与前置法规范的关系问题,主要分为严格的违法一元论、缓和的违法一元论以及违法相对论。三种学说各有不足。基于一般违法性理论的"缓和的违法相对论"有效弥补了前述理论的缺陷。一般违法性理论的提出建立在维护法秩序统一的基础之上,刑法与前置法规范在一般违法性上是统一的,而并非从属关系。"缓和的违法相对论"认为,前置法规范违法性并不能直接作为刑法违法性的判断依据,刑法违法性的判断在出罪时从属于一般违法性,入罪时除了需具有一般违法性以外还需要有可罚的违法性。在可罚的违法性的适用范围上,缓和的违法相对论要求判断在前置法规范中认为违法的行为是否具有可罚的违法性,如果不具有则阻却违法。

The Strict Monsim of Ⅲegal, The Eased Monsim of Ⅲegal and The Relativity of Ⅲegal are the three main different theories about the relationship between the criminal law and the pre - law. Each of them has its own shortcomings, which could be fixed effectively by ＂The Eased Relativity of Ⅲegal＂, the theory based on The General Ⅲegal. To protect the order of law, the opinion of The General Illegal is that the criminal law and the pre - law are unified without affiliation. According to The Eased Relativity of Illegal, the pre - law stipulated Ⅲegality could not directly be used as the basis for judging the criminal law＇ s Ⅲegality. The judgment of the criminal law＇ s illegality was generally unlawful when it was committed, and in addition to the general illegality when con- victed. In the applicable scope of penalties that can be punished, easing the relativity of the law requires judging whether the illegal behavior in the pre - law law is punishable by the law. If it is not, it will block the law.